UVM Police Services
Police Use of Force in a Free and Constitutional Society
Police use of force in the United States has always been a challenge to understand and justify in our free and open society. General guidance is found both in the United States Constitution (in particular the fourth amendment identifying force as a “seizure”). Further guidance is based in state constitutions as well as state law. Additional direction is also provided in court rulings promulgated from state and federal courts. Finally, the University of Vermont Police Services operationalizes the aforementioned guidance into policy and training.
Even after great study of these guiding principles, each and every decision an officer makes in the application of force—which is based upon subject resistance and/or aggression to the officer’s seizure, must be viewed in context of the facts and circumstances known to the officer at the time the officer takes action. Context is therefore critical in each and every decision to use force.
With that being said, as an internationally accredited police agency, the University of Vermont Police proffers the following policy to which it trains every officer to understand and apply to the fullest extent possible.
What follows is an abridged text of the University of Vermont Police’s policy entitled:
Use of Force: Response to Resistance/Aggression
This directive is for departmental use only and does not apply in any criminal or civil proceeding. Violations of this policy may form the basis for departmental administrative sanctions, but are not to be considered as a higher legal standard of conduct for officers in case of third party claims. Violations of law will form the basis for civil and/or criminal sanctions in a recognized judicial setting.
The purpose of this policy is to guide officers in the use of justified responses to resistance and/or aggression to include physical force while executing their lawful duties.
It is the policy of this department that officers employ reasonable responses to subject(s) resistance and/or aggression to accomplish lawful objectives. All response to resistance/aggression must be objectively reasonable from a similarly trained and experienced officer’s perspective.
This policy is not to be construed to require officers to assume unreasonable risks. In assessing the need to use force, the paramount consideration should always be the safety of the officer and the public. The reasonableness of an officer’s decision to use force under this policy must be viewed from the perspective of an officer on the scene, who may be forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving, without the benefit of hindsight. Officers must be able to not only make split-second decisions in often chaotic circumstances, but then must be able to articulate well both verbally and in writing the facts and circumstances that would lead a reasonable officer to act in a similar way.
- Force and Tactics – Conduct on the part of an officer that is designed to assist the officer in controlling a situation or the actions or behavior of a person or persons. Deadly force is the only force intended to cause serious injury or death. However, it is understood that other force options may unintentionally cause serious injury or death because of unknown circumstance or uncontrolled actions of the subject. It is understood that no tactic or force is certain of its intended success. Therefore, officers should be competent in their use of a range of justified responses in order to safely control the situation.
- Deadly Force – Any force that creates a substantial likelihood of causing death or serious bodily injury.
- Serious Bodily Injury – A bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement.
- Reasonable Belief – The facts or circumstances, which would cause a reasonable person to act or think in a similar way under similar circumstances.
- Objectively Reasonable – The amount of force that would be used by other similarly trained and experienced officers when faced with the known facts and circumstances that the officer using the force is presented with. (Sic from Graham v. Connor, 490 U.S. 386 (1989) 396-397.)
- Imminent – Impending or about to occur. Imminent does not mean immediate or instantaneous, but that an action is pending. Thus, a subject may pose an imminent danger even if the subject is not at that very moment pointing a weapon at a member. For example, imminent danger may exist if officers have probable cause to believe any of the following:
- The subject possesses a weapon, or is attempting to gain access to a weapon, under circumstances indicating an intention to use it against the officer or others; or
- The subject is armed and running to gain the tactical advantage of cover; or
- A subject with the capability of inflicting death or serious physical injury – or otherwise incapacitating officers without a deadly weapon, is demonstrating an intention to do so; or
- The subject is attempting to escape from the vicinity of a violent confrontation in which he/she inflicted or attempted the infliction of serious bodily injury or death upon another.
- Resistance – There are two types of resistance as it applies to police use of force:
- Passive resistance is where a subject fails to act or respond to an officer’s attempt to take him/her into custody. Some examples of passive resistance are; not standing and walking, or not putting hands behind back or opening them when the subject is capable of doing same.
- Active resistance is when a subject takes an affirmative action to defeat an officer’s ability to take him/her into custody or to seize her/him.
- Aggression – Those behaviors that are threatening or violent in nature. For the purposes of this policy the subject’s “aggression” generally needs to be directed toward another person or someone else’s property.
General Applicability and Guidance: (1.3.1)
- This policy applies to sworn law enforcement officers of UVMPS.
- In order to be in compliance with this policy, an officer must be legally performing his/her duties when force is employed.
- Justification for use of force is based primarily in the findings and guidance of: Graham v. Connor, 490 US 386, (1989). This case states in part, “all claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard…”. Therefore, according to this policy, the level of cause or justification for using any force on a free citizen is the objective reasonableness standard of the fourth amendment. It should also be understood, that the force is judged from the perspective of a reasonable officer. Officers are only required to make an objectively reasonable choice from among the force options, based on the facts and circumstances known to them at the time the force was used.
- Once the officer recognizes the force justification has changed, i.e. compliance or control, the officer needs to reassess the force application to the reasonably objective choice based on the current recognized circumstances.
Considerations in Determining Force Option(s):
In determining the justified force response to the subject’s resistance or aggression an officer should consider:
- The seriousness of the offense known to the officer at the time the force is used
- What the physical threat is to the officer or others
- Is the subject actively resisting or attempting to evade arrest by flight?
Use of Force Options (1.3.4)
It is impossible to categorize, define, or dictate the amount of force appropriate to a specific situation. Therefore, in order to control situations within the Fourth Amendment’s objectively reasonable standard, officers must be able to justify their actions in the context of the totality of the circumstance of each incident.
Oftentimes officers can deescalate situations by their presence or through use of verbal persuasion.
- Officer Presence
The visual appearance of an officer in uniform, or the announcement that an individual is a law enforcement officer along with visible identification that the officer has the authority of law may be all the action necessary to quell a situation.
- Verbal Commands
Words spoken by the officer directing the subject as to the officer’s expectations. This use of communication skills is achieved by persuading those at a scene to comply with verbal commands.
The following options of physical force are options that UVM PS officers are trained and equipped to use:
NOTE: The options of A-C are not intended to cause serious injury or death. It is understood that serious injury or death could unintentionally result from the force or tactic used because of unknown circumstances or uncontrolled actions of subject(s).
- Physical Control /Force:
Physical force entails contact with a subject. As with resistance, there are differing degrees of physical force that are subject and/or situationally driven. What force the officer is justified in using is dependent on the resistance or aggression of the subject as well as the totality of the circumstances known at the time of contact.
The range of tactics can vary from the officer’s use of hands on the subject to direct the subject’s movements; such as putting a hand on the shoulder of a subject in order to escort them away from the scene of a fight. These techniques have a low potential of injury to the subject or officer. Other tactics and/or force involve officer contact that involves substantial physical contact to forcibly overcome resistance/aggression. These tactics/techniques may include hand-to-hand control and restraint tactics, defensive tactics, strikes with or without tools. This force may also include Pepperballs™ delivered at a subject or subjects, as opposed to an OC saturation deployment.
- Chemical Agent Spray (Oleoresin Capsicum)
A pepper-based irritant use is justified when a subject exhibits active resistance or aggression.
A pepper-based irritant is intended to temporarily incapacitate without injury or long lasting effect. Pepperballs™ when used in a saturation deployment is considered the same as any O.C. delivery. The use of O.C. will often eliminate the need to physically wrestle with a suspect, thereby reducing the potential of injury to the suspect, by-standers, and officers.
O.C. spray should be carried by all officers while performing patrol activities unless authorized not to carry the agent by the shift supervisor or departmental opt-out process. This authorization needs to be in writing and filed in the officer’s training file.
- Electronic Control Device (ECD) (1.3.9 a)
(Taser™ model 26025 (yellow) with cross draw carrier or carried on the support side).
Use of the ECD is justified when a subject exhibits active resistance or aggression.
The ECD is a device that uses an electrical pulse of 50,000 volts which is intended to temporarily incapacitate without injury or lasting effects. The ECD will often eliminate the need to physically wrestle with a suspect, thereby reducing the potential of injury to the suspect, by-standers, and officers.
While on patrol the ECD should be carried with a Taser-cam installed in the Taser unit and in a department approved carrier, unless authorized not to carry the device by the shift supervisor. This authorization needs to be in writing and should only be for a limited amount of time. The documentation should be stored in the officer’s portfolio.
- Officer Presence
Deadly Force (1.3.2)
Deadly force involves the use of a firearm or other “Deadly Weapon.” As per Title 13, Vermont Statutes annotated, Chapter 19 Section 1021 (3), “Deadly Weapon” means any firearm, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
Only those weapon systems approved by the Chief of Police and that which the officer has been trained to use and demonstrated proficiency with may be carried on duty.
Deadly force is justified when:
- The officer is faced with an imminent threat of serious bodily injury or death to self or some other person (Graham v. Connor, 490 US 386, (1989), or;
- To prevent the escape of an individual in a situation where the officer has the following knowledge, perceptions, and circumstances at the time the officer applies the force:
- Probable cause to believe the subject has committed a violent felony involving the infliction or threatened infliction of serious bodily injury or death AND
- By the subject’s escape the subject poses an imminent threat of serious bodily injury or death to another AND
- Officers should warn the subject prior to using deadly force when feasible.
- That the use of deadly force must be necessary to prevent escape. (Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
Application of deadly force:
When the decision is made to use deadly force, officers may continue its application until the subject surrenders or no longer poses an imminent danger.
When deadly force is justified under this policy, attempts to shoot to cause minor injury are unrealistic and can prove dangerous to officers and others because they are unlikely to achieve the intended purpose of bringing an imminent danger to a timely halt.
When deadly force is justified, officers should assess whether its use creates a danger to third parties that outweighs the likely benefits of its use.